The Federal Land Policy and Management Act (FLPMA) requires the Bureau of Land Management (BLM) to review and revise its land use plans periodically. In the current round of reviews, the BLM is seeking to roll back protections for areas of critical environmental concern, to reduce lands managed for wilderness, and to greatly expand lands available for oil and gas and coal leasing. Since production and consumption of oil, gas, and coal result in the release of vast amounts of carbon, these changes threaten to worsen the outlook for global warming.

Before it can adopt these land use changes, the BLM must, of course, comply with the National Environmental Protection Act (NEPA). Now nearing its 50th anniversary, NEPA is one of the most important federal environmental laws. While NEPA does not mandate that a federal agency take actions that are most protective of the environment, it does require decision makers to fully disclose the environmental impacts of any major federal action in an Environmental Impact Statement. Additionally, an EIS must present and consider reasonable alternatives to a proposed federal action that might mitigate environmental impacts. Consideration of alternatives is at the heart of an EIS. An EIS that does not cover a full range of reasonable alternatives is deficient.

Increased future fossil fuel development on public lands will lead to enormous increases in climate change gases. The fact that fossil fuel development affects global temperatures has long been clear to federal decision makers. Indeed, as long ago as 1979, the Programmatic EIS for the Federal Coal Leasing program warned that coal use was a contributor to greenhouse gases and could result in increased temperatures of 2-3° Celsius. The BLM will certainly make some attempt to disclose these impacts, but mere disclosure is not enough. The BLM needs to present meaningful alternatives that would address climate change concerns.

To date, the BLM has been considering a short list of alternatives in its land use planning EISs, a no-action alternative that would keep the current land use plan in place, and several alternatives that vary the amount of protection for sensitive lands and the extent of lands open to fossil fuel development. If Judge Skelly Wright (the author of the seminal NEPA case, Calvert Cliffs v. Atomic Energy Commission) were alive today, he would undoubtedly call the BLM’s approach “crabbed.”

In particular, the BLM’s alternatives fail to present the decision maker with an alternative that would directly address the increase of carbon emissions. Many authoritative analyses, including the UN Intergovernmental Panel on Climate Change, have concluded that the world needs to achieve net zero carbon emissions economy-wide by 2050 to limit the temperature rise to 1.5˚C above pre-industrial levels. Net zero carbon dioxide can be achieved by balancing carbon emissions with carbon removal or offsets or simply eliminating carbon emissions altogether.

To comply with NEPA, the BLM needs to add a “net zero” land-use planning alternative that would reduce or mitigate net carbon impacts from activities in the planning area to zero by 2050 or another date certain. This alternative would, by necessity, constrain fossil fuel development and provide for offsetting carbon reductions. A net zero alternative can be fully consistent with FLPMA.

Net zero land use planning is not unrealistic. Many countries, states, local governments, and private businesses have or will adopt net zero policies, and many development projects are being planned to achieve net zero now. Even very large carbon producing projects can achieve net zero emissions. For example, a master planned community in southern California that will build 21,000 homes and 11.5 million square feet of commercial and office space associated with 60,000 jobs was originally planned with little consideration of climate effects. Years of litigation, environmental analysis, and private initiative transformed the project into a net zero project by incorporating a combination of onsite and offsite measures.

To achieve net zero, the project will design homes and business to be energy efficient and use solar power, will install an electric vehicle charging station in every home and build 4,000 other electric vehicle charging stations, half in the community and half offsite. In addition, the project will provide subsidies for converting public transit buses to electric buses and creating an electric school bus program within the community. Offsite, the project will invest in carbon reducing measures in the surrounding area as well as elsewhere in California and other locations.

In these critical times for the planet, NEPA can play an important role in showing a path to net zero. Net zero alternatives for the BLM’s land-use plans and other activities would illuminate the role public lands plays in contributing to (and potentially avoiding) the adverse effects of global warming and identify changes needed to reach net zero for the proposed federal action. It might be too much to hope for that this administration will seize the opportunity to adopt a net zero alternative, but the analysis of what is needed will be informative and can be a blueprint for future administrations.

In April of next year, the world will be celebrating Earth Day’s 50th anniversary. According to the ultimate source—Wikipedia—Earth Day is now celebrated in more than 193 countries. Among those celebrations is one held annually in Dallas, which this year drew a record crowd of 175,000 visitors. This particular celebration, formerly known as Earth Day Texas and rebranded as EarthX, was adopted by environmentalist Trammell S. Crow in 2011 and turned into the world’s “largest annual environmental exposition and programming initiative.”

In describing its founder, EarthX’s website notes “[w]ith a focus on inspiring environmental leadership across sectors and party lines, Trammell has succeeded in bringing together people and organizations from all walks of life to explore and collaborate on solutions for some of today’s most pressing environmental [concerns].” For example, at one of EarthX’s events this year, Susan Eisenhower moderated a discussion on climate change by Senators Lindsey Graham (R. SC) and Sheldon Whitehouse (D. RI), and Secretary of Energy Rick Perry spoke about how innovation is revolutionizing the country’s energy production and consumption. Another of this year’s EarthX events was a Law and Policy Symposium, which, consistent with EarthX’s theme of water, was entitled “Water, Water Everywhere…” The Symposium brought together prominent thought leaders, including ACOEL fellows, representing diverse perspectives to discuss legal and policy implications of a range of pertinent topics.

The Symposium included discussions of: water issues facing Texas (“Don’t mess with Texas”); federal water quality issues (“A River Runs Through It”); coastal issues (“Surf’s Up”); water issues facing cities (“Going with the Flow”); and the water energy interface (Thirst for Power”). A luncheon presentation (“Making Waves”) included the showing of an excerpt from the Emmy-award winning documentary—“The Sonic Sea”--on the threat oceanic man-made noise poses to marine life, presented by Stephen Honigman, a former general counsel of the U.S. Navy who is one of the filmmakers.

The federal water quality panel was representative of the dialog the Symposium tried to foster and resulted in a lively discussion of “water of the U.S.” involving Matt Leopold, EPA’s General Counsel, and representatives from the National Wildlife Federation, the American Farm Bureau, the National Association of Clean Water Agencies, and a moderator and a panelist from private practice. Other prominent speakers at the Symposium included Senator Sheldon Whitehouse, on the topic of water energy interface, former DOJ official John Cruden, on water issues facing cities, and Texas Attorney General Ken Paxton, on cooperative federalism (“Keeping Both Oars in the Water”).

Last year’s Symposium entitled “Back to the Future,” also included a diverse array of prominent environmental thought leaders, and focused on the future of: environmental regulation; sustainable and ethical corporate decision-making; disaster response; and domestic energy production. Reflective of the diversity of speakers, the energy session included representatives from the Edison Electric Institute, the American Council on Renewable Energy, the Citizen’s Climate Lobby, and the Climate Leadership Council, as well as a private practitioner.

The Symposium the year before dealt with fundamental environmental issues that included: integrating science into regulatory decision-making; reconciling energy and economic development with protection of the public health and environment; facilitating resolution of environmental disputes associated development; and integrating sustainability into corporate decision-making.

Next year’s Law and Policy Symposium will focus on environmental developments over the past 50 years since the first Earth Day and on where we are, or should be, headed. The Symposium organizers hope that next year’s program will result in a dialog among diverse perspectives that results in the identification of points on which there might be consensus and of a range of paths forward to realize the objective of EarthX--and its patron and founder, Trammell S. Crow--“to inspire people and organizations to take action towards a more sustainable future worldwide.”

Environmentalists have long debated the need to address links between population growth and environmental harm. Perennial issues include whether excessive consumption by the rich contributes more to environmental degradation and deserves more attention than population growth in poor countries and the merits of governmental incentives and disincentives to alter birth rates in either direction. Six writers with different perspectives explore these issues in the March/April issue of ELI’s Environmental Forum.

Professor Lucia Silecchia at Catholic University ably presents the case for focusing on poverty reduction and education, citing the warnings of Pope Francis against population control as a simplistic solution. (However, the views of the Catholic hierarchy have not caused the great majority of Catholic women to refrain from use of artificial contraception). None of the population experts joining the ELI debate, including Paul Ehrlich of Stanford and Joe Bish of the Population Media Center, supports coercive measures to reduce birth rates; but they generally agree that at a minimum, a much stronger effort to meet massive unmet needs for family planning education and service is essential to slow the rise in our numbers and make a meaningful difference.

Experts estimate that over 200,000,000 women in developing countries want to avoid pregnancy but are not using modern contraception. Melinda Gates, Co-Chair of the Gates Foundation, reports that during her visits with African women to talk about vaccination programs for children, the women generally speak up for improving access to contraception. Worldwide birthrates have declined from about 5 births per woman to 2.4 from 1960 to 2015 according to World Bank figures. But many developing countries in sub-Saharan Africa remain at near 5. If each of those 200,000, 000 women decided to have two fewer children, the result would be an appreciable reduction in population growth that would measurably increase family living standards and reduce impacts on scarce resources and the warming of the planet.

President Trump’s recent decision to withdraw from the Paris Climate Accord was disappointing but not unexpected. More bad news for people and the environment has been the Trump Administration’s extraordinary set of initiatives to slash access to family planning services internationally and here in the U.S. The Administration has launched a veritable crusade to reduce women’s autonomy, increase family poverty, and derail progress toward lower birth rates compatible with environmental sustainability. The Monday following his inauguration and the Women’s Marches, President Trump announced that he was reinstating the “gag rule” prohibiting federal funding for international family planning programs if they provide counsel, referrals, or do lobbying for abortion services even with their own funds. This rule has been on and off as U.S. Presidents have changed over the years; but Population Action International (PAI), the leading advocate for international family planning support, describes the Trump version as the gag rule on steroids. That is because the old rule applied directly only to family planning programs of about $600 million. Flanked by a lineup of well-heeled white men, the President signed an Executive Order intending to apply the new gag rule to all “global health assistance programs” receiving 15 times more U.S funding than family planning programs alone. The impact according to PAI will be greatly reduced access to birth control services for women in 60 low and middle income countries, especially in Africa.

Women in the United States are now in the cross hairs of the crusade to make access to birth control more difficult and costly. The week before the President announced his intention to exit the Paris agreement, the online news site Vox reported that a regulation had been drafted and sent forward to the Office of Management and Budget to roll back the Affordable Care Act’s mandate that employers include cost-free contraception in their health insurance programs. The Supreme Court’s decision in the Hobby Lobby case to allow a privately held firm to claim a religious exemption, as if it were a church, has not settled the issue of application of the religious exemption. While further litigation and negotiations continue, the Trump Administration is preparing regulatory action to greatly broaden the basis for objections by allowing any employer with religious or “moral convictions” against offering contraceptives without cost to opt out of providing insurance covering them. This little change would be promulgated as an interim final rule entering immediately into effect before any public comment or hearings though it affects 55 million women who have benefited from the requirement.

Advocates for women’s health services such as the Center for Reproductive Rights will challenge the content and process for the rule if it moves forward.

And there is more. The “health care” bill passed by the House of Representatives and celebrated by the President would allow states to seek waivers of required elements of the current Affordable Care Act such as offering prescription drug or maternity benefit among others, a further blow to women’s health programs.

The deep cuts in Medicaid contemplated by the House health bill together with the reduction levels floated in the Administration’s skimpy outline of its budget proposals dealing with other federal benefit programs would further burden access to birth control services by reducing insurance coverage and imposing higher costs on people least able to afford them. In addition to eliminating all funding in support of international family planning programs as well as the UN Population Fund, the budget would slash U.S Medicaid funding that also supports reproductive health care for millions of women.

The continuing campaigns of the anti-abortion and now the anti-contraception factions to limit access to reproductive health care by other people have a grossly disproportionate impact on low income women and families. Women with resources may be inconvenienced by new limitations but will rarely be prevented from obtaining contraceptives or even abortions as before.

Perhaps psychologists or sex therapists can divine why the President and his minions seem so fixated on reducing women’s access to birth control. Whatever their motivations, this is an issue environmental advocates should not ignore. Improving the lives of women and their families and increasing women’s ability to participate in decisions in their communities are the primary goals of advocates for women’s reproductive rights. But the benefits of lower birth rates to reduce pressure on natural resources and to help slow global warming are real and merit strong support.

It has been a long time since an environmental issue attracted some serious attention in a presidential campaign. This is the year, and climate change is the issue. From his campaign to his election night reference to a "planet in peril", President-Elect Obama has focused on climate change. There are a few other environmental issues to watch as well.

Climate Change

The issue of climate change overshadowed other environmental issues in this election, in part because it is directly linked to other high priorities of the new administration. Goals of creating 5 million green-collar jobs and a focus on renewable energy and energy conservation enlarge the profile of climate change initiatives. For example, on the Obama-Biden website, the topics of environment and energy are grouped together as one, and the initiatives of each are related.

Green house gases reduction is an important goal for President-Elect Obama. The goal to reduce greenhouse gases has many parts, but imposing an economy-wide cap and trade system is the centerpiece of the policy. The plan would require that all credits be purchased at auction by industry. Costs to purchase credits could be enormous.

In addition to domestic commitments to climate change initiatives, Obama supports "re-engaging" with the United Nations and the creation of a Global Energy Forum that includes the G8+5 Nations . The initial steps of his international policy may come soon when Obama's representatives will likely visit the climate change talks in Poznan, Poland this December.

The broadening Democratic majority in Congress favors Obama's climate change agenda. In addition to Democratic gains in the House and the Senate, the League of Conservation Voters reports that seven of its 2008 "dirty dozen" legislators were defeated in the 2008 election. Among environmental groups, hopes are high for the new presidency.

But because Obama's objectives require heavy investment in renewable energy, regulatory compliance, and clean technology, they face difficult hurdles. High deficits and the global financial crisis challenge the ability of the federal government to spend, the capacity of private markets to invest, and the resilience of the U.S. economy and industry to weather increased costs of regulation. Great investment would be required for meeting goals for clean coal technology, biofuel development, renewable energy, and energy efficiency.

Other Environmental Issues

Here are some of the other environmental issues to watch.

CERCLA issues have not received great attention so far. However, Obama has suggested reinstitution of the tax on industry to pay for orphaned sites and has emphasized the concept of "polluter pays".

For many years, changes to the General Mining Law of 1872 to impose royalty and/or additional regulation have been proposed and defeated. Although mining law reform has not been a significant part of the presidential campaign, the chances for its passage in the more Democratic congress has increased.

Obama's past opposition to offshore drilling weakened a bit this year in the Senate as a result of a compromised effort. Obama would support offshore exploration in areas already set aside for it, but his opposition to ANWAR remains firm.

It is unclear what priority the Obama administration will place on biodiversity and the Endangered Species Act. Biodiversity has received little attention in the campaign, but the campaign has opposed lessening of ESA consultation requirements.

American College of Environmental Lawyers, The ACOEL, is a professionalassociation of lawyers distinguished by experience and high standards in the practice of environmental law, ethics, and the development of environmental law.